Accident claim - payment in respect of disbursements.
(Samedi)
Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
|||
Between |
Zac (A Minor) through his Guardian ad Litem |
Plaintiff |
|
|
And |
The Estate of A (Deceased) |
Defendant |
|
|
Advocates D. J. Benest and G. N. A. Pearce for the Plaintiff.
Advocate L. A. Ingram for the Defendant.
judgment
the MASTER:
1. This judgment follows on from my judgment in this matter dated 16th May, 2018, reported at Zac (A Minor) v Estate of A [2018] JRC 088A. At paragraphs 99 and 100 of the previous judgment, in principle I decided it was appropriate to make a further payment on account of disbursements. However I was unable to decide what further payment on account to order because I did not know what expert costs might be incurred in relation to the discount rate argument or for a trial of the care and other medical issues to take place.
2. In an email dated 11th May, 2018, from Advocate Pearce for the plaintiff I received an estimate of future costs for financial experts and medical experts.
3. For financial experts the total amount asked for was £96,250 based on preparation of a report a conference with counsel, consideration of the defendant's reports and joint expert discussions.
4. For future medical costs, the total figure claimed was £61,978.00 based on preparing supplemental reports, a conference with counsel, joint expert discussions and a daily rate for attending at trial for each witness.
5. The schedule provided also indicated that existing medical fees of £57,330 had been incurred of which £11,440.82 remained unpaid.
6. In response to this schedule, I asked Advocate Pearce to reconcile information provided in support of the claim for disbursements at paragraph 22 of Advocate Renouf's affidavit which had a total figure of disbursements incurred by Stewarts Law of £133,328.92 and for BCR Law £6,557.85. A schedule providing this breakdown was provided on 15th May, 2018. From it the non-expert disbursements claimed by Stewarts Law totalled £65,321.09 and BCR Law £1,729.28, i.e. a total of £67,050.37. Of these costs the most significant related to translation charges of £50,411.60 incurred by Stewarts Law.
7. Advocate Ingram filed written objections in response and made the following observations.
8. In respect of financial experts fees, the costs appeared reasonable but he contended that the discount rate argument would be determined by another case referred to in my previous judgment due to come before the court in the summer of this year. He therefore argued that there was no need for the additional costs relating to joint discussions and consideration of the defendant's reports and indeed there might not be a need for any such costs at all. If there was a need to fund discount rate reports this could take place at a later date.
9. In respect of medical experts fees, Advocate Ingram accepted that the costs to be incurred for preparation of the reports themselves in the region of £40,000 were reasonable. Whether further costs would be incurred depended on to what extent the defendants accepted these reports.
10. In relation to disbursements, Advocate Ingram proposed a payment of £50,000 on account of existing expert fees incurred to date.
11. The overall effect of the proposals put forward by the defendant was therefore that future medical costs of £40,000 should be recognised and for past medical costs a payment of £50,000 should be made totalling £90,000. This is less than £110,000 already received. This would appear to suggest, that no further payment on account of disbursements should be made.
12. In deciding what payment on account of disbursements to make, I should take a cautious approach because the jurisdiction even in cases of disbursements is an exceptional one, as noted at paragraph 101 of the previous judgment.
13. In relation to past expert fees, the total amount claimed is £57,000. By reference to the schedule provided, these do not look to have been unreasonably incurred and therefore the vast majority are likely to be recoverable on a taxation. I therefore consider that I can order a payment on account of £50,000 in relation to past expert costs.
14. In relation to the estimated costs of financial experts, as part of the decision to order an interim payment, I directed the parties to name their experts and to file experts' reports by the end of October 2018. Having made this order, it would not be consistent to refuse a payment on account of the costs of preparing these reports which Advocate Ingram noted as being reasonable albeit he argued it was premature to make such an order. On this basis, I allow a figure of £40,000 towards the preparation of these reports.
15. In relation to future medical reports, at this stage all that is likely is preparation of supplemental reports and some form of joint discussions in relation to those reports. I was not persuaded for any of the experts that it was necessary for all of them to attend counsel for the time periods suggested. It is also not yet clear which experts will be required at trial. I also had some reservations as to whether all of the experts following the independent living assessment would all be required to produce updated reports and, if they were, what the extent of those reports might be. Advocate Ingram suggested, in respect of these reports, a figure of £40,000 and I accept this is an appropriate figure taking a cautious approach and my comments in this paragraph.
16. In terms of disbursements already incurred, by reference to Advocate Pearce's email of 15th May apart from expert fees, disbursements in the figure of £67,050.37 had been incurred either by Stewarts Law or BCR Law. The most significant disbursements concerns translation costs. This does not surprise me given the assessment of Mrs Coombes, the plaintiff's speech therapist whose report on page 6 notes that the first language of the family is not English and that the plaintiff's father neither speaks nor understands much English. On this basis, exercising the discretion vested in me, I propose to order a payment of £50,000 on account of past disbursements.
17. In conclusion therefore the total amount of payments towards disbursements I am prepared to sanction is £180,000 (i.e. £50,000 + £50,000 + £40,000 + £40,000). As the plaintiff has already received interim payments of £110,000, I therefore order a further interim payment on account of disbursements of £70,000.
Authorities